PENNSYLVANIA
This policy brief gives reporters quick access to important concepts, laws, and procedures of elections in PENNSYLVANIA.
The information is grouped by three pillars: transparency, verification of results, and judicial review. It aims to be a go-to resource, especially when journalists must cover close, contested, and disputed elections. Today's voters have many questions about the fairness of elections. So, the Election Overtime project aims to inform media coverage of elections that helps explain how elections are grounded in the impartial rule of law. The brief focuses on structures that enable fairness and confidence, such as the role of poll watchers, rigorous verification procedures, and the evidentiary requirements of the courts for races that are contested.
The Election Reformers Network team stands ready to support journalists in deploying this content in your coverage.
The information is grouped by three pillars: transparency, verification of results, and judicial review. It aims to be a go-to resource, especially when journalists must cover close, contested, and disputed elections. Today's voters have many questions about the fairness of elections. So, the Election Overtime project aims to inform media coverage of elections that helps explain how elections are grounded in the impartial rule of law. The brief focuses on structures that enable fairness and confidence, such as the role of poll watchers, rigorous verification procedures, and the evidentiary requirements of the courts for races that are contested.
The Election Reformers Network team stands ready to support journalists in deploying this content in your coverage.
PILLAR 1: Transparency
Election officials, like all public servants, deserve respect and support. However, with a process as critical as elections, it’s important to ensure these officials are accountable to the voters. Like many other areas of governance in the United States, transparency is one of the key mechanisms for that accountability. While there are many ways transparency can be built into election systems, one of the most important is the right established by law for competing parties to post their own observers to watch many of the phases of the election.
In recent decades, as democratization efforts challenged authoritarian rule in many countries, reformers prioritized the right of parties to observe elections as an essential element of free and fair elections.
In recent decades, as democratization efforts challenged authoritarian rule in many countries, reformers prioritized the right of parties to observe elections as an essential element of free and fair elections.
QUESTION 1: Who can observe elections?
1.a. The major parties are provided with multiple opportunities to hold the election process accountable and protect their candidates.
County Board of Elections: The County Board of Elections oversees election administration within the county and is the key certification authority for county votes. Although the state issues guidance, in Pennsylvania county boards have considerable power to determine local election policies and procedures. Most county boards consist of three elected county commissioners. However, Allegheny County, the second largest county in the state, uses a different governance structure than most counties and as a result is staffed by the County Executive and two members of County Council.
Poll Managers (District Election Board): Poll managers run the polling operations and include a judge and two inspectors. In Pennsylvania these are elected positions. This is unusual—in most states these are appointed positions, often with some input from political parties. Though they do not statutorily guarantee it, elections for inspector are designed to provide bipartisanship between the Republican and Democratic parties, with the highest and second-highest vote-getters filling the position.
Observers: Observers of election activity include “poll watchers” who are allowed to observe polling places, and “authorized representatives.” Poll watchers are present inside and outside of polling places during voting hours and are allowed to observe election day activity, including the vote tabulation. Poll watchers can be designated by the parties and candidates. In addition, authorized representatives from parties and candidates are permitted to observe pre-canvassing and canvassing activity at the central county board location, including recounts and certification. They can also observe mail-in and early ballot processing.
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CONTEXT: Decentralized Election Administration Creates InconsistencyPennsylvania law gives more authority to local election officials than most other states. This decentralization leads to inconsistencies across counties. For example, according to local reporting during last year’s municipal elections only 25 of the commonwealth’s 67 counties used electronic check-in (an e-poll book).
Pennsylvania is also one of only three states that doesn’t require at least some poll workers and directors to receive training. County election boards decide whether to conduct training as well as how to allocate staffing and resources. In response to heavy turnover and frustration about training needs among new election administrators, the Department of State is providing more training resources this year.
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1.b. Pennsylvania places few restrictions on who can serve as a poll watcher.
Who can observe: Poll watchers must be registered to vote in the county they are serving in and must be officially designated by the parties as documented by a certificate from the county election office. Pennsylvania does not explicitly provide any other opportunities for non-partisan observers or the public at large to view polling procedures. However, the general public may view the tabulation, audit, and other canvas proceedings at the county board.
Non-partisan and out-of-state individuals may be stationed outside of polling places to assist voters.
Who cannot observe: Voter registration aside, there are no statutory limits on who can serve as a poll watcher. Candidates can appoint two poll watchers per district and parties can appoint three. However, only one of each is allowed in the polling location at a time. Similarly, each candidate and each party is allowed one “authorized representative” at the central county board location.
1.c. Parties control the selection and management of poll watchers.
Similar to the challenge identified above about poll workers, Pennsylvania does not mandate training to become a poll watcher or authorized representative. To be useful to the parties they are representing, observers should be trained in their role and knowledgeable about election procedures, ensuring credibility of their accounts if they observe problems.
Parties also have a responsibility to ensure their observers understand their role and know not to interfere in any way with the election process. Parties can, and many do, train observers.
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CONTEXT: Political party observers are an important part of the process.
Election observers who represent their political parties can provide important validation about the vote counting process, and they can be trusted messengers within their political networks. However, without proper training, they can make mistakes or false assumptions. Some states require training; many do not.
One example of the importance of training observers comes from the Principles for Trusted Elections, a cross-partisan program co-chaired by family members of former U.S Presidents Gerald R. Ford (Republican) and Jimmy Carter (Democrat). The principles call on all candidates to “encourage political parties and others to train poll-watchers on the election process and appropriate roles and behaviors, responsibilities, and obligations.”
Candidates, voters, and civic organizations can endorse these principles by signing a short online form.
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County Board of Elections: The County Board of Elections oversees election administration within the county and is the key certification authority for county votes. Although the state issues guidance, in Pennsylvania county boards have considerable power to determine local election policies and procedures. Most county boards consist of three elected county commissioners. However, Allegheny County, the second largest county in the state, uses a different governance structure than most counties and as a result is staffed by the County Executive and two members of County Council.
Poll Managers (District Election Board): Poll managers run the polling operations and include a judge and two inspectors. In Pennsylvania these are elected positions. This is unusual—in most states these are appointed positions, often with some input from political parties. Though they do not statutorily guarantee it, elections for inspector are designed to provide bipartisanship between the Republican and Democratic parties, with the highest and second-highest vote-getters filling the position.
Observers: Observers of election activity include “poll watchers” who are allowed to observe polling places, and “authorized representatives.” Poll watchers are present inside and outside of polling places during voting hours and are allowed to observe election day activity, including the vote tabulation. Poll watchers can be designated by the parties and candidates. In addition, authorized representatives from parties and candidates are permitted to observe pre-canvassing and canvassing activity at the central county board location, including recounts and certification. They can also observe mail-in and early ballot processing.
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CONTEXT: Decentralized Election Administration Creates InconsistencyPennsylvania law gives more authority to local election officials than most other states. This decentralization leads to inconsistencies across counties. For example, according to local reporting during last year’s municipal elections only 25 of the commonwealth’s 67 counties used electronic check-in (an e-poll book).
Pennsylvania is also one of only three states that doesn’t require at least some poll workers and directors to receive training. County election boards decide whether to conduct training as well as how to allocate staffing and resources. In response to heavy turnover and frustration about training needs among new election administrators, the Department of State is providing more training resources this year.
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1.b. Pennsylvania places few restrictions on who can serve as a poll watcher.
Who can observe: Poll watchers must be registered to vote in the county they are serving in and must be officially designated by the parties as documented by a certificate from the county election office. Pennsylvania does not explicitly provide any other opportunities for non-partisan observers or the public at large to view polling procedures. However, the general public may view the tabulation, audit, and other canvas proceedings at the county board.
Non-partisan and out-of-state individuals may be stationed outside of polling places to assist voters.
Who cannot observe: Voter registration aside, there are no statutory limits on who can serve as a poll watcher. Candidates can appoint two poll watchers per district and parties can appoint three. However, only one of each is allowed in the polling location at a time. Similarly, each candidate and each party is allowed one “authorized representative” at the central county board location.
1.c. Parties control the selection and management of poll watchers.
Similar to the challenge identified above about poll workers, Pennsylvania does not mandate training to become a poll watcher or authorized representative. To be useful to the parties they are representing, observers should be trained in their role and knowledgeable about election procedures, ensuring credibility of their accounts if they observe problems.
Parties also have a responsibility to ensure their observers understand their role and know not to interfere in any way with the election process. Parties can, and many do, train observers.
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CONTEXT: Political party observers are an important part of the process.
Election observers who represent their political parties can provide important validation about the vote counting process, and they can be trusted messengers within their political networks. However, without proper training, they can make mistakes or false assumptions. Some states require training; many do not.
One example of the importance of training observers comes from the Principles for Trusted Elections, a cross-partisan program co-chaired by family members of former U.S Presidents Gerald R. Ford (Republican) and Jimmy Carter (Democrat). The principles call on all candidates to “encourage political parties and others to train poll-watchers on the election process and appropriate roles and behaviors, responsibilities, and obligations.”
Candidates, voters, and civic organizations can endorse these principles by signing a short online form.
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Question 2: What about nonpartisan election observers and the public?
2.a. Nonpartisan election monitoring is different from partisan observation.
Nonpartisan election observation is an impartial process where trained observers systematically gather data about an election in order to assess key aspects of the process and report on the degree to which the election was fair, peaceful, and credible. Grounded by facts and evidence, trustworthy observers validate the critical work being done by those on the front lines of our democracy. When organized correctly, observers cannot be party actors or advocates — in fact, observers agree to follow a strict code of conduct to ensure they remain nonpartisan and don’t interfere with the voting process. According to The Carter Center, which is an international leader in election monitoring, nonpartisan observation is a common best practice in many democracies around the globe.
2.b. Pennsylvania provides limited opportunities for nonpartisan monitors and the general public to observe election procedures.
Pennsylvania does not explicitly provide opportunities for nonpartisan monitors or the general public to observe most election procedures. There is a currently pending lawsuit brought by the ACLU in York County, PA, seeking to require non-partisan observers to be allowed to witness everything the authorized representatives and authorized witness can see.
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CONTEXT: Titles can be confusing. Throughout this section we use the terms “nonpartisan election observers” or “nonpartisan election monitors” to refer to people whose role is to be impartial and focus on the process. These people are often researchers or “good government” experts. Note: this role is often confused with assigned observers for ballot initiatives, independent candidates, or nonpartisan candidates (such as observers for school board races).
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Nonpartisan election observation is an impartial process where trained observers systematically gather data about an election in order to assess key aspects of the process and report on the degree to which the election was fair, peaceful, and credible. Grounded by facts and evidence, trustworthy observers validate the critical work being done by those on the front lines of our democracy. When organized correctly, observers cannot be party actors or advocates — in fact, observers agree to follow a strict code of conduct to ensure they remain nonpartisan and don’t interfere with the voting process. According to The Carter Center, which is an international leader in election monitoring, nonpartisan observation is a common best practice in many democracies around the globe.
2.b. Pennsylvania provides limited opportunities for nonpartisan monitors and the general public to observe election procedures.
Pennsylvania does not explicitly provide opportunities for nonpartisan monitors or the general public to observe most election procedures. There is a currently pending lawsuit brought by the ACLU in York County, PA, seeking to require non-partisan observers to be allowed to witness everything the authorized representatives and authorized witness can see.
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CONTEXT: Titles can be confusing. Throughout this section we use the terms “nonpartisan election observers” or “nonpartisan election monitors” to refer to people whose role is to be impartial and focus on the process. These people are often researchers or “good government” experts. Note: this role is often confused with assigned observers for ballot initiatives, independent candidates, or nonpartisan candidates (such as observers for school board races).
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QUESTION 3: What are poll watchers allowed to see?
3.a. Most election procedures are open to observation from party representatives.
Party observers are allowed in designated areas at the polling place and anywhere counting, auditing, or other vote processing is taking place. Observers cannot interfere with or impede the election procedures or staff, and they can be asked to leave if they do so.
Party observers are allowed in designated areas at the polling place and anywhere counting, auditing, or other vote processing is taking place. Observers cannot interfere with or impede the election procedures or staff, and they can be asked to leave if they do so.
PILLAR 2: Verification of Results
For citizens and politicians, elections are a lot like horse races, with the focus squarely on who’s ahead at the end. For election professionals, by contrast, a better metaphor is a series of accounting problems. Does everything balance including seal numbers on equipment, ballots used, initial tabulations and audit results, etc.? Election procedures and paperwork are built to facilitate this verification.
Verification is supported by redundancy, with multiple layers of checks designed to find any errors and confirm accuracy.
Verification is supported by redundancy, with multiple layers of checks designed to find any errors and confirm accuracy.
QUESTION 4: How is the security and accuracy of equipment verified?
4.a. Vote counting accuracy is tested before voting.
Pennsylvania counties differ in their methods for recording and tabulating votes. Some use electronic systems for filling out ballots and counting votes. Others use scanners for hand marked ballots. Regardless which system is used, Pennsylvania performs rigorous testing of all voting machines. Election officials must demonstrate before any equipment is used that a varied set of test ballots was accurately recorded by each ballot marking device (BMD) and tabulated correctly by each scanner.
This process is called “Logic and Accuracy” testing and is open to the public. Pennsylvania’s testing is generally on par with many other states and should, combined with the state’s risk-limiting audits, catch the vast majority of errors before election results are finalized. The state placed 19th in a national ranking of logic and accuracy testing, with researchers highlighting Pennsylvania’s excellent transparency of its testing procedures. To further improve testing, the University of Michigan researchers recommended changing recommended practices into requirements and testing all the different ballot styles in use throughout the state.
4.b. No equipment used to cast a ballot is connected to the internet.
In Pennsylvania, throughout the election, tabulation and other voting equipment is secured and sealed, and, per state regulations, is isolated from internet connections and external software. If an onsite scanner was used, its memory device can be physically transported in approved sealed envelopes for consolidation if needed (example: page 56-57 of the Lancaster Co. Poll Worker Manual).
A person who inappropriately modifies voting equipment may be charged with a misdemeanor of the second degree.
4.c. All votes cast create a paper record, available for audits or recounts.
Maintaining a verifiable paper trail, as all Pennsylvania counties do, is a recommended best practice for election administration. This practice includes all votes cast with ballot marking devices (BMDs). Officials can audit or recount the paper ballots if there are concerns about the results from electronic tabulators.
BMDs are an assistive device like a touch screen that provides voters with a printed copy of their ballot. These devices do not store information; the only record is the printout. In Pennsylvania, voters decide whether to adopt voting machines for regular use on a county-by-county basis. A majority of voters (70%) live in counties that primarily use hand marked ballots on election day. Only 12 of the commonwealth’s 67 counties conduct most of their voting on BMDs.
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CONTEXT: A Note About Ballot Marking Devices
While some experts suggest voting is more efficient and accessible when all voters use a BMD, others disagree. The national organization Verified Voting recommends that voters mark ballots by hand, citing research that voters are not likely to verify their BMD printout before putting in the machine. On the other hand, the Center for Civic Design favors BMDs, in part because of their speed in tabulation and ease of use for voters with disabilities. The U.S. Election Assistance Commission, a bipartisan federal commission, doesn’t take a position on BMDs but simply recommends that jurisdictions maintain paper ballots, regardless how they are marked.
To compare the different types of voting technology, visit MIT’s election data lab.
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4.d. Equipment is certified by state and federal authorities.
Only pre-approved equipment can be used in elections, including the poll books and BMDs. Equipment must come from a list of technology certified by the Pennsylvania’s Department of State and which also complies with federal security guidelines. In addition, Pennsylvania voters may petition the state for a re-examination of certified voting machines. These activities are summarized in this layperson-friendly overview to voting machine security.
Pennsylvania counties differ in their methods for recording and tabulating votes. Some use electronic systems for filling out ballots and counting votes. Others use scanners for hand marked ballots. Regardless which system is used, Pennsylvania performs rigorous testing of all voting machines. Election officials must demonstrate before any equipment is used that a varied set of test ballots was accurately recorded by each ballot marking device (BMD) and tabulated correctly by each scanner.
This process is called “Logic and Accuracy” testing and is open to the public. Pennsylvania’s testing is generally on par with many other states and should, combined with the state’s risk-limiting audits, catch the vast majority of errors before election results are finalized. The state placed 19th in a national ranking of logic and accuracy testing, with researchers highlighting Pennsylvania’s excellent transparency of its testing procedures. To further improve testing, the University of Michigan researchers recommended changing recommended practices into requirements and testing all the different ballot styles in use throughout the state.
4.b. No equipment used to cast a ballot is connected to the internet.
In Pennsylvania, throughout the election, tabulation and other voting equipment is secured and sealed, and, per state regulations, is isolated from internet connections and external software. If an onsite scanner was used, its memory device can be physically transported in approved sealed envelopes for consolidation if needed (example: page 56-57 of the Lancaster Co. Poll Worker Manual).
A person who inappropriately modifies voting equipment may be charged with a misdemeanor of the second degree.
4.c. All votes cast create a paper record, available for audits or recounts.
Maintaining a verifiable paper trail, as all Pennsylvania counties do, is a recommended best practice for election administration. This practice includes all votes cast with ballot marking devices (BMDs). Officials can audit or recount the paper ballots if there are concerns about the results from electronic tabulators.
BMDs are an assistive device like a touch screen that provides voters with a printed copy of their ballot. These devices do not store information; the only record is the printout. In Pennsylvania, voters decide whether to adopt voting machines for regular use on a county-by-county basis. A majority of voters (70%) live in counties that primarily use hand marked ballots on election day. Only 12 of the commonwealth’s 67 counties conduct most of their voting on BMDs.
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CONTEXT: A Note About Ballot Marking Devices
While some experts suggest voting is more efficient and accessible when all voters use a BMD, others disagree. The national organization Verified Voting recommends that voters mark ballots by hand, citing research that voters are not likely to verify their BMD printout before putting in the machine. On the other hand, the Center for Civic Design favors BMDs, in part because of their speed in tabulation and ease of use for voters with disabilities. The U.S. Election Assistance Commission, a bipartisan federal commission, doesn’t take a position on BMDs but simply recommends that jurisdictions maintain paper ballots, regardless how they are marked.
To compare the different types of voting technology, visit MIT’s election data lab.
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4.d. Equipment is certified by state and federal authorities.
Only pre-approved equipment can be used in elections, including the poll books and BMDs. Equipment must come from a list of technology certified by the Pennsylvania’s Department of State and which also complies with federal security guidelines. In addition, Pennsylvania voters may petition the state for a re-examination of certified voting machines. These activities are summarized in this layperson-friendly overview to voting machine security.
QUESTION 5: How do officials verify registration and validity of individual votes?
5.a. Pennsylvania officials draw on a range of sources to update voter rolls, within limits set by federal law.
A challenge that Pennsylvania, and every other state faces, is that Americans move a lot and rarely let voting officials know. The result is an ongoing risk that voting rolls will contain names of people no longer eligible to vote in the state. However, wide-scale purges of voter rolls can lead to worries about possible voter suppression.
For example, These differing perspectives played out in 2023 in Pennsylvania when the right-leaning Judicial Watch filed a lawsuit to reduce the voter rolls. The suit was opposed by voting rights advocates, and settled in March 2023. Both sides claimed some level of victory in the suit.
A system that helps address voter registration problems is the Election Registration Information Center (ERIC), which enables, limited, information-sharing between states. Pennsylvania is a member of ERIC and can use that membership to help identify names of voters no longer in the state. (Pennsylvania has retained its membership in ERIC, standing against what is widely considered by election officials to be misinformation about the program. In the last two years, nine states withdrew their membership and subsequently encountered significant problems replacing the data benefits of the system.)
In addition to ERIC voter registration is updated with information from other state and national databases and sources including the state’s department of transportation (PennDOT) and County Assistance Offices. Federal law prohibits removing voters simply for non-voting, but a state can remove someone from the rolls if it sends a notice to a non-voter who fails to respond (or vote) within the next two federal elections. Even if a voter has not responded during that time frame, federal law prohibits removing voters from the rolls within 90 days of an election.
Pennsylvania residents can check their registration status online, ensuring they can vote on election day.
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CONTEXT: Pennsylvania has seen considerable changes in its voter rolls in recent years.
Pennsylvania implemented Automatic Voter Registration (AVR) in September 2023, resulting in a notable increase in the number of applications submitted through PennDOT. According to the Secretary of the Commonwealth, registrations have changed in the following ways:
A challenge that Pennsylvania, and every other state faces, is that Americans move a lot and rarely let voting officials know. The result is an ongoing risk that voting rolls will contain names of people no longer eligible to vote in the state. However, wide-scale purges of voter rolls can lead to worries about possible voter suppression.
For example, These differing perspectives played out in 2023 in Pennsylvania when the right-leaning Judicial Watch filed a lawsuit to reduce the voter rolls. The suit was opposed by voting rights advocates, and settled in March 2023. Both sides claimed some level of victory in the suit.
A system that helps address voter registration problems is the Election Registration Information Center (ERIC), which enables, limited, information-sharing between states. Pennsylvania is a member of ERIC and can use that membership to help identify names of voters no longer in the state. (Pennsylvania has retained its membership in ERIC, standing against what is widely considered by election officials to be misinformation about the program. In the last two years, nine states withdrew their membership and subsequently encountered significant problems replacing the data benefits of the system.)
In addition to ERIC voter registration is updated with information from other state and national databases and sources including the state’s department of transportation (PennDOT) and County Assistance Offices. Federal law prohibits removing voters simply for non-voting, but a state can remove someone from the rolls if it sends a notice to a non-voter who fails to respond (or vote) within the next two federal elections. Even if a voter has not responded during that time frame, federal law prohibits removing voters from the rolls within 90 days of an election.
Pennsylvania residents can check their registration status online, ensuring they can vote on election day.
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CONTEXT: Pennsylvania has seen considerable changes in its voter rolls in recent years.
Pennsylvania implemented Automatic Voter Registration (AVR) in September 2023, resulting in a notable increase in the number of applications submitted through PennDOT. According to the Secretary of the Commonwealth, registrations have changed in the following ways:
Affiliation |
2003 Registrants |
2019 Registrants |
Change Since 2019 |
Democrat |
3,895,628 |
4,062,752 |
-167,124 |
Republican |
3,460,590 |
3,254,822 |
205,768 |
Other/No Affiliation |
1,304,968 |
1,231,488 |
73,480 |
Total Registration |
8,661,186 |
8,549,062 |
112,124 |
QUESTION 6: How are the initial tabulations checked and verified?
6.a. Pennsylvania officials cannot process early ballots until election day.
In Pennsylvania, early in-person and mail ballots cannot be processed until the morning of the election. The results of this “pre-canvass” can be released after the polls close. Allowing officials to prepare ballots for counting and scan ballots before election day is a best practice that greatly improves their ability to provide timely unofficial results.
6.b. The initial results are subject to confirmation testing and oversight.
After the closing of the polls, local elections officials launch two sets of reviews. The first is a basic recount of a random sample of 2% of ballots in the county or 2,000 ballots, whichever is less. During this count, sworn members of an audit team count the votes for each of the races on each ballot. Their results are compared to the original results from the close of the polls. This count must be done using a different method from the original tabulation. For example, ballots that were counted electronically using a scanner might be counted by hand. However, they must be completed before county certification can take place.
The second check, implemented statewide for the first time in 2022, is a risk-limiting tabulation audit. The audit must be completed no later than the third Monday after the election (November 25, 2024). In the risk-limiting audit, officials compare a random sample of votes cast across the state in one or more races, selected by the Pennsylvania Department of State.
Although a majority of states conduct some form of reliable audit, Pennsylvania has gone further by adopting risk-limiting audits, as have other states including at least Georgia, Colorado, Rhode Island, and Virginia. Audits, especially risk-limiting audits, are considered a best practice for election management. The key to a risk-limiting audit is that instead of sample size set by law, the number of ballots counted adjusts to the margin of victory in the preliminary results. In close elections, a larger number of ballots are counted because of the need to reach a confidence threshold that the winner has been accurately identified. If the race is not close, a smaller sample is needed.
This method is more efficient than full recounts and allows election authorities to be confident that the preliminary results have accurately identified the winner. Pennsylvania’s 2024 primary audit provided a risk limit of 10 percent, meaning that in the unlikely scenario of a wrong outcome the audit will have a 90% chance of identifying that incorrect outcome.
In Pennsylvania, early in-person and mail ballots cannot be processed until the morning of the election. The results of this “pre-canvass” can be released after the polls close. Allowing officials to prepare ballots for counting and scan ballots before election day is a best practice that greatly improves their ability to provide timely unofficial results.
6.b. The initial results are subject to confirmation testing and oversight.
After the closing of the polls, local elections officials launch two sets of reviews. The first is a basic recount of a random sample of 2% of ballots in the county or 2,000 ballots, whichever is less. During this count, sworn members of an audit team count the votes for each of the races on each ballot. Their results are compared to the original results from the close of the polls. This count must be done using a different method from the original tabulation. For example, ballots that were counted electronically using a scanner might be counted by hand. However, they must be completed before county certification can take place.
The second check, implemented statewide for the first time in 2022, is a risk-limiting tabulation audit. The audit must be completed no later than the third Monday after the election (November 25, 2024). In the risk-limiting audit, officials compare a random sample of votes cast across the state in one or more races, selected by the Pennsylvania Department of State.
Although a majority of states conduct some form of reliable audit, Pennsylvania has gone further by adopting risk-limiting audits, as have other states including at least Georgia, Colorado, Rhode Island, and Virginia. Audits, especially risk-limiting audits, are considered a best practice for election management. The key to a risk-limiting audit is that instead of sample size set by law, the number of ballots counted adjusts to the margin of victory in the preliminary results. In close elections, a larger number of ballots are counted because of the need to reach a confidence threshold that the winner has been accurately identified. If the race is not close, a smaller sample is needed.
This method is more efficient than full recounts and allows election authorities to be confident that the preliminary results have accurately identified the winner. Pennsylvania’s 2024 primary audit provided a risk limit of 10 percent, meaning that in the unlikely scenario of a wrong outcome the audit will have a 90% chance of identifying that incorrect outcome.
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CONTEXT: Official Results Come Later
In the interest of transparency, preliminary returns are presented on election night. But this is not the final word. Official returns come later, after all ballots have been counted, audited, and certified.
Today, lack of understanding of the audit and certification process by spreaders of disinformation allows conspiracy theories to flourish while making it harder for officials to do their jobs in a timely and accurate manner.
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6.c. Pennsylvania’s method of auditing is preferable to widespread hand counts.
Confusion about the certification process has led some activists to demand that ballots be hand counted. Although conducting a hand count on top of required audits is not explicitly against the rules in Pennsylvania, this is not recommended as a best practice in election administration.
Studies show that hand counts are slower and less accurate than machine counting. Audits involving partial hand counts can be used as an additional data point and an additional check to verify the overall outcome, but full hand counts would likely make elections slower, less accurate, and less secure.
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CONTEXT: More On Hand Counts
At best, a system that relies on hand counting will take longer to generate results. But, the real risk is that it opens the door to exhausted poll workers making errors and gives bad-faith actors more fodder and time to act. We want our teachers and police officers to do their jobs using the best, most proven, technology and methods. We should want the same for election officials. In Pennsylvania, conducting state-wide risk-limiting audits empowers officials to get voters results in a timely and effective manner.
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6.d. Pennsylvania certification cannot happen until all audits and recounts are complete. (Court ordered recounts can happen later.)
State law requires that votes are recorded, audited, investigated, and recounted on a county level. Unofficial returns are provided to the Department of State where additional oversight is provided for statewide offices, including automatic recounts. Neither the county boards nor the Secretary of the Commonwealth can issue certificates of election until all checks are completed. However, these checks must be completed within three weeks of the election (by November 25, 2024).
6.e. Nearly anyone who suspects an error or discrepancy in the returns can request recounts.
Recounts may happen in a number of scenarios. First, a partial recount must be done within election districts (precincts) if it appears there is a discrepancy in the returns that cannot be resolved. The county board is also legally allowed to order a partial district-level or full recount “of its own motion” without a specified reason.
Second, a group of three voters can also make a formal request for a recount to the county board or to the Court of Common Pleas. Recounts stemming from petitions to the Court are generally a full recount covering any district in which the office appeared on the ballot. There is no time requirement placed on recounts before or after certification. An increase in recount petitions last year did delay certification in a few counties and may do so again in 2024. A recent order by the Pennsylvania Supreme Court may help to address delays in the court system but does not address recount petitions received by county boards prior to certification.
Finally, the Secretary of the Commonwealth must order an automatic recount for any statewide races or ballot measures with a winning margin of .5% or less. The Secretary’s order must be issued by November 14, 2024 (the second Thursday following the day of the election) and completed by November 26, 2024. All recounts and requests occur prior to certification.
The use of automatic recounts for any statewide race with a close margin is a good practice that provides voters with assurance that recounts will happen where they matter the most. The commonwealth also provides county boards with a relatively high degree of discretionary power to conduct recounts (see question above).
Recounts must be done using tabulators which differ from the method that was used by the district in the election, or by hand.
These rules are in place to ensure that any discrepancies are found and investigated and do not occur on a scale that could affect the outcome of the election. Errors in tabulation identified by recounts are, in general, documented in the official record and corrected prior to certification of the results.
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CONTEXT: Recounts Rarely Change The Outcome.
An analysis by Fairvote found that in roughly 7,000 statewide races across the U.S from 2000-2023, there were only three recounts that changed the outcome of the race, and those were all elections with a margin of victory of less than 0.06%. However, small discrepancies can happen. In fact, most recounts differ marginally from the original results of the election. The purpose of recounts isn’t to confirm exactly the same results, but rather to ensure that any individual errors or attempts at fraud could not have changed the results of an election.
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CONTEXT: Official Results Come Later
In the interest of transparency, preliminary returns are presented on election night. But this is not the final word. Official returns come later, after all ballots have been counted, audited, and certified.
Today, lack of understanding of the audit and certification process by spreaders of disinformation allows conspiracy theories to flourish while making it harder for officials to do their jobs in a timely and accurate manner.
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6.c. Pennsylvania’s method of auditing is preferable to widespread hand counts.
Confusion about the certification process has led some activists to demand that ballots be hand counted. Although conducting a hand count on top of required audits is not explicitly against the rules in Pennsylvania, this is not recommended as a best practice in election administration.
Studies show that hand counts are slower and less accurate than machine counting. Audits involving partial hand counts can be used as an additional data point and an additional check to verify the overall outcome, but full hand counts would likely make elections slower, less accurate, and less secure.
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CONTEXT: More On Hand Counts
At best, a system that relies on hand counting will take longer to generate results. But, the real risk is that it opens the door to exhausted poll workers making errors and gives bad-faith actors more fodder and time to act. We want our teachers and police officers to do their jobs using the best, most proven, technology and methods. We should want the same for election officials. In Pennsylvania, conducting state-wide risk-limiting audits empowers officials to get voters results in a timely and effective manner.
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6.d. Pennsylvania certification cannot happen until all audits and recounts are complete. (Court ordered recounts can happen later.)
State law requires that votes are recorded, audited, investigated, and recounted on a county level. Unofficial returns are provided to the Department of State where additional oversight is provided for statewide offices, including automatic recounts. Neither the county boards nor the Secretary of the Commonwealth can issue certificates of election until all checks are completed. However, these checks must be completed within three weeks of the election (by November 25, 2024).
6.e. Nearly anyone who suspects an error or discrepancy in the returns can request recounts.
Recounts may happen in a number of scenarios. First, a partial recount must be done within election districts (precincts) if it appears there is a discrepancy in the returns that cannot be resolved. The county board is also legally allowed to order a partial district-level or full recount “of its own motion” without a specified reason.
Second, a group of three voters can also make a formal request for a recount to the county board or to the Court of Common Pleas. Recounts stemming from petitions to the Court are generally a full recount covering any district in which the office appeared on the ballot. There is no time requirement placed on recounts before or after certification. An increase in recount petitions last year did delay certification in a few counties and may do so again in 2024. A recent order by the Pennsylvania Supreme Court may help to address delays in the court system but does not address recount petitions received by county boards prior to certification.
Finally, the Secretary of the Commonwealth must order an automatic recount for any statewide races or ballot measures with a winning margin of .5% or less. The Secretary’s order must be issued by November 14, 2024 (the second Thursday following the day of the election) and completed by November 26, 2024. All recounts and requests occur prior to certification.
The use of automatic recounts for any statewide race with a close margin is a good practice that provides voters with assurance that recounts will happen where they matter the most. The commonwealth also provides county boards with a relatively high degree of discretionary power to conduct recounts (see question above).
Recounts must be done using tabulators which differ from the method that was used by the district in the election, or by hand.
These rules are in place to ensure that any discrepancies are found and investigated and do not occur on a scale that could affect the outcome of the election. Errors in tabulation identified by recounts are, in general, documented in the official record and corrected prior to certification of the results.
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CONTEXT: Recounts Rarely Change The Outcome.
An analysis by Fairvote found that in roughly 7,000 statewide races across the U.S from 2000-2023, there were only three recounts that changed the outcome of the race, and those were all elections with a margin of victory of less than 0.06%. However, small discrepancies can happen. In fact, most recounts differ marginally from the original results of the election. The purpose of recounts isn’t to confirm exactly the same results, but rather to ensure that any individual errors or attempts at fraud could not have changed the results of an election.
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QUESTION 7: Who certifies results in Pennsylvania, and what issues have arisen around certification?
7.a. Certification is the official sign-off on election results at different levels of election governance.
In Pennsylvania, certification happens at the county and state levels. County certification in the state is the responsibility of county boards of elections, which in most of the state consist of the three county commissioners, who are elected every four years in partisan elections. County commissioners have broad administrative responsibilities and also broad involvement in elections.
During certification, the boards of election receive precinct-by-precinct results and other information and affirm that the aggregate outcome accurately sums up the underlying data. The boards are required to “tabulate the figures for the entire county and sign, announce and attest the same.” County-level certification must be completed 12 days after the election, except that delays are permitted in case of change in results due to recounts or court action, not longer than the 3rd Monday after the election.
State level certification is the responsibility of the secretary of the commonwealth, who “shall forthwith proceed to tabulate, compute and canvass the votes cast for all candidates.”
7.b. Certifying results is ministerial, a non-discretionary, required function.
Pennsylvania courts have repeatedly confirmed the ministerial nature of certification. For example, the Pennsylvania Commonwealth court ruled in 2005 that “the duties of a board of elections under the Election Code are ministerial and allow for no exercise of discretion.”
If a county board or the secretary of the commonwealth refused to certify, a court can mandate certification be completed, relying on a writ of mandamus, which compels government officials to comply with the law and is an effective tool for addressing certification refusal.
The county boards have some powers to investigate, order recounts, and correct precinct returns. For example, the law provides that If any discrepancies are discovered, the county board shall examine relevant documents, “cause the ballot box of the district to be opened and the vote therein to be recounted in the presence of attorneys, watchers, and candidates interested,” and “if the recount shall not be sufficient to correct the error, the county board may summon the election officers and overseers, if any, to appear forthwith with all election papers in their possession.” There is no time requirement placed on county board recounts made in response to citizen petitions. An increase in recount petitions last year did delay certification in a few counties and may do so again in 2024.
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CONTEXT: Certification Processes Similar to Congressional Validation of the Presidential Election
The final counting of Electoral votes in Congress during the Presidential election follows the same logic. (See ECRA section below. Members of Congress can object to electoral votes only on extremely narrow grounds, such as if an elector voted to elect a president and vice president of the same state, which is not permitted by the Constitution.
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7.c. Some individuals responsible for certification in Pennsylvania have refused to certify results.
All such refusals have been resolved, in some cases by court orders. Members of six county election boards in Pennsylvania refused to certify results. The Secretary of the Commonwealth filed a legal action that led to a court mandating that members of three boards certify the results. In the other three counties, the board members who voted against certifying were outvoted.
Across the county in recent years, each instance of refusal to certify was resolved by: courts compelling certification, the refuser changing their vote; or the refuser being outvoted on the certifying body. Election results were not affected, nor were post-election timeframes significantly delayed. However, these types of conflicts can create baseless doubts about elections among voters, and they can undermine faith that officials will adhere to the law in the face of partisan concerns and pressures.
7.d. Pennsylvania law provides other, better-suited means to address challenges and concerns about the accuracy of results.
Candidates and political parties have the right to challenge election results in court after county and state certification. These challenges are managed by courts, institutions expressly designed for the task of hearing evidence and rendering judgment. Pennsylvania law also provides for audits and recounts, which can identify potential problems with the accuracy of results. (See Pillar 3 for information on legal challenges to election results.)
Strictly speaking, therefore, until any recounts and court challenges are completed, the results certified by the county election boards and the secretary of the commonwealth may be subject to change. It is rare, however, for an election outcome to change after certification.
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CONTEXT: Certification in U.S. Different from Other Democracies
Election certification is a feature of U.S. elections that is highly unusual from an international perspective. A recent study of 12 major democracies found that none has a separate certification step in their election process. In fact, none has the word “certification” (or its equivalent) in their election laws at all. Instead, election administrators announce the results, courts hear any challenges, and court decisions are final. Also, very few countries involve political parties in the results process. In the US, by contrast, most of the individuals involved in certification at the state and local levels are either party members elected in partisan elections or are nominated by parties to election boards.
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In Pennsylvania, certification happens at the county and state levels. County certification in the state is the responsibility of county boards of elections, which in most of the state consist of the three county commissioners, who are elected every four years in partisan elections. County commissioners have broad administrative responsibilities and also broad involvement in elections.
During certification, the boards of election receive precinct-by-precinct results and other information and affirm that the aggregate outcome accurately sums up the underlying data. The boards are required to “tabulate the figures for the entire county and sign, announce and attest the same.” County-level certification must be completed 12 days after the election, except that delays are permitted in case of change in results due to recounts or court action, not longer than the 3rd Monday after the election.
State level certification is the responsibility of the secretary of the commonwealth, who “shall forthwith proceed to tabulate, compute and canvass the votes cast for all candidates.”
7.b. Certifying results is ministerial, a non-discretionary, required function.
Pennsylvania courts have repeatedly confirmed the ministerial nature of certification. For example, the Pennsylvania Commonwealth court ruled in 2005 that “the duties of a board of elections under the Election Code are ministerial and allow for no exercise of discretion.”
If a county board or the secretary of the commonwealth refused to certify, a court can mandate certification be completed, relying on a writ of mandamus, which compels government officials to comply with the law and is an effective tool for addressing certification refusal.
The county boards have some powers to investigate, order recounts, and correct precinct returns. For example, the law provides that If any discrepancies are discovered, the county board shall examine relevant documents, “cause the ballot box of the district to be opened and the vote therein to be recounted in the presence of attorneys, watchers, and candidates interested,” and “if the recount shall not be sufficient to correct the error, the county board may summon the election officers and overseers, if any, to appear forthwith with all election papers in their possession.” There is no time requirement placed on county board recounts made in response to citizen petitions. An increase in recount petitions last year did delay certification in a few counties and may do so again in 2024.
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CONTEXT: Certification Processes Similar to Congressional Validation of the Presidential Election
The final counting of Electoral votes in Congress during the Presidential election follows the same logic. (See ECRA section below. Members of Congress can object to electoral votes only on extremely narrow grounds, such as if an elector voted to elect a president and vice president of the same state, which is not permitted by the Constitution.
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7.c. Some individuals responsible for certification in Pennsylvania have refused to certify results.
All such refusals have been resolved, in some cases by court orders. Members of six county election boards in Pennsylvania refused to certify results. The Secretary of the Commonwealth filed a legal action that led to a court mandating that members of three boards certify the results. In the other three counties, the board members who voted against certifying were outvoted.
Across the county in recent years, each instance of refusal to certify was resolved by: courts compelling certification, the refuser changing their vote; or the refuser being outvoted on the certifying body. Election results were not affected, nor were post-election timeframes significantly delayed. However, these types of conflicts can create baseless doubts about elections among voters, and they can undermine faith that officials will adhere to the law in the face of partisan concerns and pressures.
7.d. Pennsylvania law provides other, better-suited means to address challenges and concerns about the accuracy of results.
Candidates and political parties have the right to challenge election results in court after county and state certification. These challenges are managed by courts, institutions expressly designed for the task of hearing evidence and rendering judgment. Pennsylvania law also provides for audits and recounts, which can identify potential problems with the accuracy of results. (See Pillar 3 for information on legal challenges to election results.)
Strictly speaking, therefore, until any recounts and court challenges are completed, the results certified by the county election boards and the secretary of the commonwealth may be subject to change. It is rare, however, for an election outcome to change after certification.
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CONTEXT: Certification in U.S. Different from Other Democracies
Election certification is a feature of U.S. elections that is highly unusual from an international perspective. A recent study of 12 major democracies found that none has a separate certification step in their election process. In fact, none has the word “certification” (or its equivalent) in their election laws at all. Instead, election administrators announce the results, courts hear any challenges, and court decisions are final. Also, very few countries involve political parties in the results process. In the US, by contrast, most of the individuals involved in certification at the state and local levels are either party members elected in partisan elections or are nominated by parties to election boards.
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QUESTION 8: What's changed since 2020 about how Congress concludes the presidential election process?
8.a. In 2022, Congress passed the bipartisan Electoral Count Reform Act (ECRA), replacing an outdated law from 1887.
The new federal law addresses vulnerabilities in the presidential election process that were exposed by events following the 2020 election. ECRA clarified several procedures that had been ambiguous under federal law, including that the Vice President’s role in counting electoral votes is “solely ministerial.” Because the presidential election is administered by the states, ECRA also impacted aspects of state law (described below).
8.b. ECRA aims to prevent unsanctioned electors and related problems with presidential elections by clarifying details about the official submission to Congress of each state’s presidential electoral count.
Under ECRA, the governor must issue a state’s Certificate of Ascertainment of Appointment of Electors, unless state law explicitly delegates that duty to another executive official. ECRA also specifies that each certificate must contain:
Then, when those electors hold their official meeting, they sign and submit a different certificate of votes delineating the electoral college votes for President and Vice President.
In addition to these federal requirements, 33 states including Arizona have passed laws prohibiting unsanctioned or “faithless” electors in the presidential election process. Pennsylvania has not passed such a law.
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CONTEXT: 2020 “fake electors” highlighted the need for ECRA
In 2020, after it became clear that former President Donald Trump’s multiple lawsuits contesting the election results lacked evidentiary merit to alter the outcome, he and allies assembled their own slates of presidential electors in seven states where Trump did not win. Those unsanctioned electors met the same day as the legitimate electors, cast votes for Trump, and submitted to Congress competing Certificates of Ascertainment. President Trump began a pressure campaign to urge then-Vice President Mike Pence to discard the actual results from those seven states, and instead accept the fraudulent ones during the January 6, 2021 vote counting hearing. Had the Vice President done so, and had enough members of Congress gone along, President Joe Biden would have fallen short of the 270-vote Electoral College majority.
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8.c. ECRA clarifies the timeline for the presidential post-election process, with implications for states.
This timeline includes a new mandatory deadline for issuing the Certificate of Ascertainment, a new deadline for court intervention, and an updated date for the electors to meet and cast their votes. As a result, many intermediate state deadlines (such as vote counting, recounts, and audits) may need to be updated to comply with the new mandatory deadlines. Some states have updated their laws to reflect this timeline. Although Pennsylvania is not among them, federal law should generally preempt state law where there is overlap.
8.d. Legislatures cannot change the rules after Election Day.
ECRA requires that elections be administered according to the state laws in place prior to Election Day, including laws governing presidential electors, voting emergencies, and related provisions. Importantly, ECRA also removed language from the old law pertaining to "failed elections" that bad-faith actors relied upon to argue that federal law allowed state legislatures to step in after the election was over and appoint their own presidential electors, potentially overturning the will of the voters.
8.e. ECRA strengthens the role of courts.
The new law gives the courts the last word over disputes regarding a state's presidential election results, including any needed changes to the state's Certificate of Ascertainment. It also establishes a process for aggrieved presidential or vice-presidential candidates to bring cases before three-judge federal district courts.
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CONTEXT: Do Americans vote for the President, or for the electors?
Actually, under the somewhat convoluted provisions of the Electoral College, Americans technically vote for the electors, who in turn vote for the Presidential and Vice Presidential candidates. Most states deploy a “winner takes all” approach in which all the Electoral College votes are awarded to the ticket that won the popular vote in that state. Two states (Maine and Nebraska) split a portion of their electoral votes by congressional district.
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The new federal law addresses vulnerabilities in the presidential election process that were exposed by events following the 2020 election. ECRA clarified several procedures that had been ambiguous under federal law, including that the Vice President’s role in counting electoral votes is “solely ministerial.” Because the presidential election is administered by the states, ECRA also impacted aspects of state law (described below).
8.b. ECRA aims to prevent unsanctioned electors and related problems with presidential elections by clarifying details about the official submission to Congress of each state’s presidential electoral count.
Under ECRA, the governor must issue a state’s Certificate of Ascertainment of Appointment of Electors, unless state law explicitly delegates that duty to another executive official. ECRA also specifies that each certificate must contain:
- The names of the state’s electors
- The number of popular votes won in that state by each of the presidential candidates’ electors (see below, “Do Americans vote for the President, or the electors?”)
- Authenticity elements, such as the seal of the State and at least one security feature
Then, when those electors hold their official meeting, they sign and submit a different certificate of votes delineating the electoral college votes for President and Vice President.
In addition to these federal requirements, 33 states including Arizona have passed laws prohibiting unsanctioned or “faithless” electors in the presidential election process. Pennsylvania has not passed such a law.
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CONTEXT: 2020 “fake electors” highlighted the need for ECRA
In 2020, after it became clear that former President Donald Trump’s multiple lawsuits contesting the election results lacked evidentiary merit to alter the outcome, he and allies assembled their own slates of presidential electors in seven states where Trump did not win. Those unsanctioned electors met the same day as the legitimate electors, cast votes for Trump, and submitted to Congress competing Certificates of Ascertainment. President Trump began a pressure campaign to urge then-Vice President Mike Pence to discard the actual results from those seven states, and instead accept the fraudulent ones during the January 6, 2021 vote counting hearing. Had the Vice President done so, and had enough members of Congress gone along, President Joe Biden would have fallen short of the 270-vote Electoral College majority.
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8.c. ECRA clarifies the timeline for the presidential post-election process, with implications for states.
This timeline includes a new mandatory deadline for issuing the Certificate of Ascertainment, a new deadline for court intervention, and an updated date for the electors to meet and cast their votes. As a result, many intermediate state deadlines (such as vote counting, recounts, and audits) may need to be updated to comply with the new mandatory deadlines. Some states have updated their laws to reflect this timeline. Although Pennsylvania is not among them, federal law should generally preempt state law where there is overlap.
8.d. Legislatures cannot change the rules after Election Day.
ECRA requires that elections be administered according to the state laws in place prior to Election Day, including laws governing presidential electors, voting emergencies, and related provisions. Importantly, ECRA also removed language from the old law pertaining to "failed elections" that bad-faith actors relied upon to argue that federal law allowed state legislatures to step in after the election was over and appoint their own presidential electors, potentially overturning the will of the voters.
8.e. ECRA strengthens the role of courts.
The new law gives the courts the last word over disputes regarding a state's presidential election results, including any needed changes to the state's Certificate of Ascertainment. It also establishes a process for aggrieved presidential or vice-presidential candidates to bring cases before three-judge federal district courts.
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CONTEXT: Do Americans vote for the President, or for the electors?
Actually, under the somewhat convoluted provisions of the Electoral College, Americans technically vote for the electors, who in turn vote for the Presidential and Vice Presidential candidates. Most states deploy a “winner takes all” approach in which all the Electoral College votes are awarded to the ticket that won the popular vote in that state. Two states (Maine and Nebraska) split a portion of their electoral votes by congressional district.
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PILLAR 3: Judicial Review
No institution is better suited to consider evidence and render judgment than the judicial system; this is why the rule of law in election is anchored in recourse to the courts. Many countries give courts responsibility for confirming results of all elections, not just contested ones, and some countries have election tribunals solely dedicated to this task. At a minimum, all democracies allow some level of judicial recourse to challenge potentially unlawful behavior that may have impacted election results.
For a long time, the United States didn’t measure up to that standard. Historically, the role of courts in policing the electoral arena was inconsistent and contested at best. As a result, some egregious election misconduct was allowed to stand.
For a long time, the United States didn’t measure up to that standard. Historically, the role of courts in policing the electoral arena was inconsistent and contested at best. As a result, some egregious election misconduct was allowed to stand.
QUESTION 9: What recourse do candidates or citizens have if they think election officials did something wrong?
9.a. In addition to requesting a recount, voters in Pennsylvania can challenge an election through the court system.
The right to challenge election results is broadly available to voters and candidates in Pennsylvania law. Interested parties can challenge elections through the court system. In all circumstances, solid evidence is necessary. Challenges lacking any evidence create burdens for the court system and can result in penalties for repeated abuse.
Additionally, as described in Verification of Results, Pennsylvania law provides a specific process for a group of three voters to request a recount either from the county board or a court.
9.b. Challenges can happen in state or federal court.
State law provides explicit grounds for challengers to request recounts and receive expedited consideration of their claims in state court. Voters and candidates may also be able to bring a broader set of claims in state or federal court. These claims may involve issues that don’t affect the outcome of the election.
People or entities challenging elections have many of the same types of rights as those bringing a lawsuit in a non-election context: They may provide evidence, present arguments, and appeal to a higher court if they lose.
The right to challenge election results is broadly available to voters and candidates in Pennsylvania law. Interested parties can challenge elections through the court system. In all circumstances, solid evidence is necessary. Challenges lacking any evidence create burdens for the court system and can result in penalties for repeated abuse.
Additionally, as described in Verification of Results, Pennsylvania law provides a specific process for a group of three voters to request a recount either from the county board or a court.
9.b. Challenges can happen in state or federal court.
State law provides explicit grounds for challengers to request recounts and receive expedited consideration of their claims in state court. Voters and candidates may also be able to bring a broader set of claims in state or federal court. These claims may involve issues that don’t affect the outcome of the election.
People or entities challenging elections have many of the same types of rights as those bringing a lawsuit in a non-election context: They may provide evidence, present arguments, and appeal to a higher court if they lose.
QUESTION 10: What’s required of plaintiffs and what can journalists expect in an election challenge?
10.a. Plaintiffs must be able to show they have standing.
The person bringing the contest or lawsuit must have standing. The source of this requirement—and what plaintiffs must show to meet it—may vary between federal and state court. But either way, the plaintiff must show a concrete interest in the outcome. For example, a voter or elected official from one state will not have standing to challenge the result in a different state.
10.b. To utilize Pennsylvania’s expedited contest process, plaintiffs must approach court together at least some must attest to their belief that illegal activity occurred.
In Pennsylvania, the process and requirements for an expedited contest depends on the office involved. For the 2024 election there are two “Classes” of office up for election.
To contest the outcome of statewide races (U.S. President and Vice President, U.S. Senators, and all officers of the Commonwealth except the Governor and Lieutenant Governor) 100 individuals who voted in the race can submit a petition to a local chief judge.
To contest the outcome of the races for Representatives in Congress and for Senators and Representatives in the General Assembly, 20 voters registered in the relative district can petition the court of common pleas of the county where the winner lives.
In both cases, petitions must be filed within 20 days after the election. At least five of the petitioners must attest that “they believe the facts stated [in the petition] are true, that according to the best of their knowledge and belief, the…election was illegal and the return thereof not correct, and that the petition to contest the same is made in good faith.” Petitioners must also pay a bond covering the estimated cost of the contest, which is owed to the state if it’s determined that the complaint does not have probable cause.
Hearings in contested cases must start within 30 days of the petitions being received. (25 P.S. § 3460) And, time for testimony can be equitably shortened by the presiding judge.
10.c. Other challenges in state or federal court may include a broader set of allegations and races.
Challenges do not always focus on disputing the vote count or challenging election results. Some cases may be brought to ensure voters are treated equally and fairly under the law and seek remedies aside from changing the outcome of a particular race. Although cases like these are typically brought before voting beings, these cases may continue well after the certification of results and the seating of elected officials.
Challenges in state or federal court alleging the violation of state or federal law may implicate multiple races, including state-legislative and federal races. Because this type of litigation can be so varied and complicated, journalists should consult with election law experts that are not involved in the case for help explaining the context and potential implications to readers.
10.d. Courts assume the election results produced through the election process are accurate until plaintiffs can prove otherwise.
This starting point is roughly analogous to the concept of “innocent until proven guilty” in criminal cases. Altering the outcome of an election without proof invalidates the votes of the people.
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CONTEXT: Fraud is Not Fraud Without Proof
Much of the discussion of flaws in recent elections is based on the theory that because fraud theoretically might have occurred, the election must be suspect. A criminal conviction based solely on what might have happened would never be tolerated, and a change in an election outcome based on similar logic would be deeply unfair to candidates and voters alike.
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10.e. The presence of wrongdoing alone is generally not enough to change results.
In an expedited election contest courts are primarily focused on determining “which of the candidates voted for received the greatest number of legal votes, and is entitled to the nomination or office. If petitioners bring credible and reliable evidence, and if they prove that enough votes were involved that the election result was wrong, then a court may declare a different winner.
Or, in rare cases, a court might find that there were significant flaws in the ballots, ballot labels or potentially other election materials and procedures, and that those flaws misled voters and by design affected the outcome of the election. In such cases the remedy is to declare the office vacant and to hold a new election.
Outside of election contests, if an accusation doesn’t involve enough votes to change the results of an election, some cases may still continue on other grounds. For example, even if an accusation of bribery involves only a small number of votes, it is still a serious accusation that, if true, may point to other remedies against the individuals involved.
In practice, most claims against election results do not withstand scrutiny in court and very few election contests result in a decision to change the outcome. In most circumstances, including expedited election contests, the parties may appeal to a higher court.
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CONTEXT: Do the Math Journalists reporting on election cases, especially in the immediate aftermath of the election, should carefully examine the remedy requested by the plaintiffs and petitioners and weigh whether the allegations in the complaint could plausibly justify the remedy. Consider an election that was won by 4000 votes. Even if a plaintiff proves that 1000 voters were improperly turned away from polling stations, overturning the election would be an inappropriate remedy. The judge may rule against the election authority and order process changes or individual penalties, but the results of the election will stand.
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The person bringing the contest or lawsuit must have standing. The source of this requirement—and what plaintiffs must show to meet it—may vary between federal and state court. But either way, the plaintiff must show a concrete interest in the outcome. For example, a voter or elected official from one state will not have standing to challenge the result in a different state.
10.b. To utilize Pennsylvania’s expedited contest process, plaintiffs must approach court together at least some must attest to their belief that illegal activity occurred.
In Pennsylvania, the process and requirements for an expedited contest depends on the office involved. For the 2024 election there are two “Classes” of office up for election.
To contest the outcome of statewide races (U.S. President and Vice President, U.S. Senators, and all officers of the Commonwealth except the Governor and Lieutenant Governor) 100 individuals who voted in the race can submit a petition to a local chief judge.
To contest the outcome of the races for Representatives in Congress and for Senators and Representatives in the General Assembly, 20 voters registered in the relative district can petition the court of common pleas of the county where the winner lives.
In both cases, petitions must be filed within 20 days after the election. At least five of the petitioners must attest that “they believe the facts stated [in the petition] are true, that according to the best of their knowledge and belief, the…election was illegal and the return thereof not correct, and that the petition to contest the same is made in good faith.” Petitioners must also pay a bond covering the estimated cost of the contest, which is owed to the state if it’s determined that the complaint does not have probable cause.
Hearings in contested cases must start within 30 days of the petitions being received. (25 P.S. § 3460) And, time for testimony can be equitably shortened by the presiding judge.
10.c. Other challenges in state or federal court may include a broader set of allegations and races.
Challenges do not always focus on disputing the vote count or challenging election results. Some cases may be brought to ensure voters are treated equally and fairly under the law and seek remedies aside from changing the outcome of a particular race. Although cases like these are typically brought before voting beings, these cases may continue well after the certification of results and the seating of elected officials.
Challenges in state or federal court alleging the violation of state or federal law may implicate multiple races, including state-legislative and federal races. Because this type of litigation can be so varied and complicated, journalists should consult with election law experts that are not involved in the case for help explaining the context and potential implications to readers.
10.d. Courts assume the election results produced through the election process are accurate until plaintiffs can prove otherwise.
This starting point is roughly analogous to the concept of “innocent until proven guilty” in criminal cases. Altering the outcome of an election without proof invalidates the votes of the people.
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CONTEXT: Fraud is Not Fraud Without Proof
Much of the discussion of flaws in recent elections is based on the theory that because fraud theoretically might have occurred, the election must be suspect. A criminal conviction based solely on what might have happened would never be tolerated, and a change in an election outcome based on similar logic would be deeply unfair to candidates and voters alike.
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10.e. The presence of wrongdoing alone is generally not enough to change results.
In an expedited election contest courts are primarily focused on determining “which of the candidates voted for received the greatest number of legal votes, and is entitled to the nomination or office. If petitioners bring credible and reliable evidence, and if they prove that enough votes were involved that the election result was wrong, then a court may declare a different winner.
Or, in rare cases, a court might find that there were significant flaws in the ballots, ballot labels or potentially other election materials and procedures, and that those flaws misled voters and by design affected the outcome of the election. In such cases the remedy is to declare the office vacant and to hold a new election.
Outside of election contests, if an accusation doesn’t involve enough votes to change the results of an election, some cases may still continue on other grounds. For example, even if an accusation of bribery involves only a small number of votes, it is still a serious accusation that, if true, may point to other remedies against the individuals involved.
In practice, most claims against election results do not withstand scrutiny in court and very few election contests result in a decision to change the outcome. In most circumstances, including expedited election contests, the parties may appeal to a higher court.
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CONTEXT: Do the Math Journalists reporting on election cases, especially in the immediate aftermath of the election, should carefully examine the remedy requested by the plaintiffs and petitioners and weigh whether the allegations in the complaint could plausibly justify the remedy. Consider an election that was won by 4000 votes. Even if a plaintiff proves that 1000 voters were improperly turned away from polling stations, overturning the election would be an inappropriate remedy. The judge may rule against the election authority and order process changes or individual penalties, but the results of the election will stand.
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QUESTION 11: Why do some election challenges go to trial while others are dismissed by the judge?
11.a. Dismissal decisions hinge on multiple variables.
Before any case goes to trial, there are typically hearings and motions to determine if the case should be dismissed. A case may be dismissed for many reasons.
Many election-related legal actions are dismissed without going to trial because they fall short of one or more of these standards. Here are some theoretical examples.
Many election challenges in 2020 were dismissed for one or more of the reasons above. (This review of the 2020 presidential election legal challenges by a group of Republican judges and election lawyers summarizes these issues.)
Before any case goes to trial, there are typically hearings and motions to determine if the case should be dismissed. A case may be dismissed for many reasons.
- Jurisdiction: The court may lack the power/authority to hear the claim.
- Standing: The plaintiff may lack the legal right to bring the challenge.
- Venue: The plaintiff may have filed in the wrong court.
- Statement of a claim: There may be insufficient evidence to warrant a trial, or the allegations of the plaintiff may not even describe a violation of law.
- Unreasonable delays (also known as "Laches"): A suit may challenge the rules after the election when it should, instead, have challenged those rules well in advance.
Many election-related legal actions are dismissed without going to trial because they fall short of one or more of these standards. Here are some theoretical examples.
- A voter from one state attempts to challenge an election result in a different state.
- A case brought on the theory that voting equipment could have been connected to the internet but provides no evidence that the equipment ever was, in fact, connected to the internet.
- A challenge calls for overturning an election won by 10,000 votes, based on evidence of errors only affecting one polling station of 100 voters.
Many election challenges in 2020 were dismissed for one or more of the reasons above. (This review of the 2020 presidential election legal challenges by a group of Republican judges and election lawyers summarizes these issues.)
QUESTION 12: What are some of the challenges of reporting on election cases?
12.a. The timelines are tight.
Election contests typically need to be heard and decided quickly, and this is particularly true of presidential elections. The timeline for judicial action in presidential elections is governed in substantial part by the Electoral Count Reform Act, enacted in 2022 in response to the events of January 6, 2021. Cases often involve a sequence of motions and responses that happen in quick succession and that can be challenging to explain to the media audience.
12.b. Historically, the legal system is not focused on communicating to the public.
Court rulings typically address questions of law, for example whether a particular statute applies to the circumstances of the case. This can mean that the implication of the decision for the election results are not directly stated.
Challenges that are dismissed without going to trial (discussed above) can often be interpreted as dodging the issue, as technical avoidance of a question that one side sees as a burning issue. In fact, as the examples above illustrate, dismissal often means the contestants’ claims are so far-fetched or so unsupported by evidence that an actual trial is not even needed.
Reporters need to learn to “speak court” and press lawyers to give clear, simple explanations of what is going on in order translate decisions into writing that readers can easily understand.
Election contests typically need to be heard and decided quickly, and this is particularly true of presidential elections. The timeline for judicial action in presidential elections is governed in substantial part by the Electoral Count Reform Act, enacted in 2022 in response to the events of January 6, 2021. Cases often involve a sequence of motions and responses that happen in quick succession and that can be challenging to explain to the media audience.
12.b. Historically, the legal system is not focused on communicating to the public.
Court rulings typically address questions of law, for example whether a particular statute applies to the circumstances of the case. This can mean that the implication of the decision for the election results are not directly stated.
Challenges that are dismissed without going to trial (discussed above) can often be interpreted as dodging the issue, as technical avoidance of a question that one side sees as a burning issue. In fact, as the examples above illustrate, dismissal often means the contestants’ claims are so far-fetched or so unsupported by evidence that an actual trial is not even needed.
Reporters need to learn to “speak court” and press lawyers to give clear, simple explanations of what is going on in order translate decisions into writing that readers can easily understand.
Experts
Kathy Boockvar, President of Athena Strategies LLC; previously served as PA Secretary of State
Veronica Degraffenreid, Senior manager in the Elections and Government Program at the Brennan Center
Ben Ginsberg, Pillars of the Community Co-Chair (national expert)
Judge John E. Jones III, President of Dickinson College; former chief judge of the U.S. Middle District Court of PA
Ari Mittleman, Keep Our Republic Executive Director
Jennifer Morrell, The Elections Group CEO & Co-Founder (national expert)
Emma Shoucair, Antigerrymandering Political Lead for RepresentUS
Kim Wyman, Bipartisan Policy Center Senior Fellow (national expert)
Veronica Degraffenreid, Senior manager in the Elections and Government Program at the Brennan Center
Ben Ginsberg, Pillars of the Community Co-Chair (national expert)
Judge John E. Jones III, President of Dickinson College; former chief judge of the U.S. Middle District Court of PA
Ari Mittleman, Keep Our Republic Executive Director
Jennifer Morrell, The Elections Group CEO & Co-Founder (national expert)
Emma Shoucair, Antigerrymandering Political Lead for RepresentUS
Kim Wyman, Bipartisan Policy Center Senior Fellow (national expert)
External Resources
Pennsylvania Consolidated Statutes
Department of State Website. Note, guidance issued by the Department of State in Pennsylvania is generally not legally binding.
Votebeat Pennsylvania, provides detailed local reporting on elections in Pennsylvania, where election administration varies greatly from county to county.
Certification Processes and Guardrails, provided by the Brennan Center for Justice.
VOTE411, a project of the League of Women Voters that provides state-by-state information for everyday voters.
Department of State Website. Note, guidance issued by the Department of State in Pennsylvania is generally not legally binding.
Votebeat Pennsylvania, provides detailed local reporting on elections in Pennsylvania, where election administration varies greatly from county to county.
Certification Processes and Guardrails, provided by the Brennan Center for Justice.
VOTE411, a project of the League of Women Voters that provides state-by-state information for everyday voters.
Event |
Audience and Purpose |
Date or Target Week Times |
National press briefing #1 |
Pre-election: Launch the series. Orient to the project, resources, and expected priorities for coverage nationally. |
9/16/24* |
PA pre-election press briefing |
Pre-election, in-state reporters |
10/2/24 |
National press briefing #2 |
Pre-election, all reporters, all states: Summary the state briefings, what we are hearing in the key states, what to watch for. |
10/21/24* |
National press briefing #3 |
Post-election, all reporters, all states: What we saw this week. States where judicial review may be called on. |
11/7/24 ** |
In-state briefings as needed |
Post-election, state specific: We may, or may not, need the chance to put forward our in-state experts, depending on what happens in each state. |
11/6/24 or 11/12/24 |
National press briefing #4 |
Post-election: Electoral Count Reform Act in action. Certificates of Ascertainment to be issued the next day. Our legal team briefs reporters on the next month of deadlines. |
12/10/24 ** |
National press briefing #5 |
Post-election: Congress meets tomorrow to accept electoral votes. ERN’s team of commentators will brief reporters on what’s expected. |
1/5/25 ** |
Date |
Pennsylvania Election Activity |
11/12/24 |
Last day for county boards to receive ID from absentee or mail-in electors. |
11/12/24 |
County boards of elections must submit unofficial returns for all statewide offices and ballot questions to the Secretary of the Commonwealth. |
11/14/24 |
Secretary of the Commonwealth must issue orders for recounts in close races as required by law. |
11/20/24 |
All recounts in close races must begin by this date. |
11/24/24 |
Last possible day for three voters to petition the court for a recount. (There is no deadline for the completion of these recounts.) |
11/25/24 |
2% count-level recounts and risk-limiting audit must be completed by this date. |
11/25/24 |
Last day for county boards of elections to certify returns from the November election. |
11/25/24 |
Last day to file a petition for an election contest. |
11/26/24 |
All recounts ordered by the Secretary of the Commonwealth must be completed by this date. |
11/27/24 |
Last day for county boards of elections to submit the results of the recount to the Secretary of the Commonwealth. (Results must be submitted by 12 Noon on the day after completion of a recount.) |
12/11/24 |
Deadline to issue certificates of ascertainment officially appointing the state's presidential electors |
12/17/24 |
Meeting of the Electoral College |
For More Dates See the Pennsylvania Department of State's Calendar
Note: This material should be used for general informational purposes only.
It is provided as a resource to journalists and reflects ERN's research findings at the time of publication. It does not constitute legal advice, nor should it replace independent confirmation.
It is provided as a resource to journalists and reflects ERN's research findings at the time of publication. It does not constitute legal advice, nor should it replace independent confirmation.